Powers of National Government Dangerous to States

by

Robert Yates, a delegate to the 1787 convention from New York, left on July
10, 1787. He became an Antifederalist leader. Under the nome de plume
"Sydney" he wrote in the New York Daily Patriotic Register, June 13
and 14, 1788.

Although a variety of objections to the proposed new constitution for the
government of the United States have been laid before the public by men of the
best abilities, I am led to believe that representing it in a point of view
which has escaped their observation may be of use, that is, by comparing it with
the constitution of the State of New York.

The following contrast is therefore submitted to the public, to show in what
instances the powers of the state government will be either totally or partially
absorbed, and enable us to determine whether the remaining powers will, from
those kind of pillars, be capable of supporting the mutilated fabric of a
government which even the advocates for the new constitution admit excels
"the boasted models of Greece or Rome, and those of all other nations, in
having precisely marked out the power of the government and the rights of the
people."

It may be proper to premise that the pressure of necessity and distress (and
not corruption) had a principal tendency to induce the adoption of the state
constitutions and the existing confederation; that power was even then vested in
the rulers with the greatest caution; and that, as from every circumstance we
have reason to infer that the Dew constitution does not originate from a pure
source, we ought deliberately to trace the extent and tendency of the trust we
are about to repose, under the conviction that a reassumption of that trust will
at least be difficult, if not impracticable. If we take a retrospective view of
the measures of Congress.… we can scarcely entertain a doubt but that a
plan has long since been framed to subvert the confederation; that that plan has
been matured with the most persevering industry and unremitted attention; and
that the objects expressed in the preamble to the constitution, that is "to
promote the general welfare and secure the blessings of liberty to ourselves and
our posterity," were merely the ostensible, and not the real reasons of its
framers…

The state governments are considered in … [the new constitution] as mere
dependencies, existing solely by its toleration, and possessing powers of which
they may be deprived whenever the general government is disposed so to do. If
then the powers of the state governments are to be totally absorbed, in which
all agree, and only differ as to the mode—whether it will be effected by a rapid
progression, or by as certain, but slower, operations—what is to limit the
oppression of the general government? Where are the rights, which are declared
to be incapable of violation? And what security have people against the wanton
oppression of unprincipled governors? No constitutional redress is pointed out,
and no express declaration is contained in it, to limit the boundaries of their
rulers. Beside which the mode and period of their being elected tends to take
away their responsibility to the people over whom they may, by the power of the
purse and the sword, domineer at discretion. Nor is there a power on earth to
tell them, What dost thou? or, Why dost thou so? I shall now proceed to compare
the constitution of the state of New York with the proposed federal government,
distinguishing the paragraphs in the former, which are rendered nugatory by the
latter; those which are in a great measure enervated, and such as are in the
discretion of the general government to permit or not.…

1 & 37

The 1st "Ordains, determines, and declares that no authority shall on
any pretence whatever be exercised over the people or the members of this State,
but such as shall be derived from and granted by them."

The 37th, "That no purchases or contracts for the sale of lands with or
of the Indians within the limits of this state, shall be binding on the Indians,
or deemed valid, unless made under the authority and with the consent of the
legislature of this state."

… What have we reasonably to expect will be their conduct [i.e., the new
national government] when possessed of the powers "to regulate commerce
with foreign nations, and among the several states, and with the Indian
tribes," when they are armed with legislative, executive, and judicial
powers, and their laws the supreme laws of the land. And when the states are
prohibited, without the consent of Congress, to lay any "imposts or duties
on imports," and if they do they shall be for the use of the Treasury of
the United States—and all such laws subject to the revision and control of
Congress.

It is … evident that this state, by adopting the new government, will
enervate their legislative rights, and totally surrender into the hands of
Congress the management and regulation of the Indian trade to an improper
government, and the traders to be fleeced by iniquitous impositions, operating
at one and the same time as a monopoly and a poll-tax.…

The 2nd provides "that the supreme legislative power within this state
shall be vested in two separate and distinct bodies of men, the one to be called
the assembly, and the other to be called the senate of the state of New York,
who together shall form the legislature."

The 3rd provides against laws that may be hastily and inadvertently passed,
inconsistent with the spirit of the constitution and the public good, and that
"the governor, the chancellor and judges of the supreme court, shall revise
all bills about to be passed into laws, by the legislature."

The 9th provides "that the assembly shall be the judge of their own
members, and enjoy the same privileges, and proceed in doing business in like
manner as the assembly of the colony of New York of right formerly did."

The 12th provides "that the senate shall, in like manner, be judges of
their own members," etc.

The 31st describes even the style of laws—that the style of alt laws shall be
as follows: "Be it enacted by the people of the state of New York
represented in senate and assembly," and that all writs and proceedings
shall run in the name of the people of the state of New York, and tested in the
name of the chancellor or the chief judge from whence they shall issue.

The powers vested in the legislature of this state by these paragraphs will
be weakened, for the proposed new government declares that "all legislative
powers therein granted shall be vested in a congress of the United States, which
shall consist of a senate and a house of representatives," and it further
prescribes, that "this constitution and the laws of the United States,
which shall be made in pursuance thereof; and all treaties made, or which shalt
be made under the authority of the United States, shall be the supreme law of
the land, and the judges in every state shall be bound thereby, anything in the
constitution or laws of any state to the contrary notwithstanding; and the
members of the several state legislatures, and all executive and judicial
officers, both of the United States and of the several states, shall be bound by
oath or affirmation to support this constitution."

Those who are full of faith, suppose that the words "in pursuance
thereof" are restrictive, but if they reflect a moment and take into
consideration the comprehensive expressions of the instrument, they will find
that their restrictive construction is unavailing, and this is evidenced by 1st
art., 8th sect., where this government has a power "to lay and collect all
taxes, duties, imposts and excises, to pay the debts, and provide for the common
defense and general welfare of the United States," and also "to make
all laws which shall be necessary and proper for carrying into execution the
foregoing powers vested by this constitution in the government of the United
States, or in any department or office thereof."

.… To conclude my observation on this head, it appears to me as
impossible that these powers in the state constitution and those in the general
government can exist and operate together, as it would be for a man to serve two
masters whose interests clash, and secure the approbation of both. Can there at
the same time and place be and operate two supreme legislatures, executives, and
judicials? Will a "guarantee of a republican form of government to every
state in the union" be of any avail, or secure the establishment and
retention of state rights?

If this guarantee had remained, as it was first reported by the committee of
the whole house, to wit, "that a republican constitution, and its existing
laws, ought to be guaranteed to each state by the United States," it would
have been substantial; but the changing the word constitution into the word form
bears no favorable appearance.…

13, 35, 41

By the 13th paragraph "no member of this State shall be disfranchised,
or deprived of any of the rights or privileges secured to the subjects of the
State by the constitution, unless by the law of the land, or judgment of its
peers."

The 35th adopts, under certain exceptions and modifications, the common law
of England, the statute law of England and Great Britain, and the acts of the
legislature of the colony, which together formed the law on the 19th of April,
1775.

The 41st provides "that the trial by jury remain inviolate forever; that
no acts of attainder shall be passed by the legislature of this State for crimes
other than those committed before the termination of the present war. And that
the legislature shall at no time hereafter institute any new courts but such as
shall proceed according to the course of the common law.

There can be no doubt that if the new government be adopted in all its
latitude, every one of these paragraphs will become a dead letter. Nor will it
solve any difficulties, if the United States guarantee "to every state in
the union a republican form of government;" we may be allowed the form and
not the substance, and that it was so intended will appear from the changing the
word constitution to the word form and the omission of the words, and its
existing laws. And I do not even think it uncharitable to suppose that it was
designedly done; but whether it was so or not, by leaving out these words the
jurisprudence of each state is left to the mercy of the new government.…

17, 18, 19, 20, 21, 27, 40

The 17th orders "That the supreme executive power and authority of this
State shall be vested in a governor."

By the 18th he is commander-in-chief of the militia and admiral of the navy
of the State; may grant pardons to all persons convicted of crimes; he may
suspend the execution of the sentence in treason or murder.

By the 19th paragraph he is to see that the laws and resolutions of the
legislature be faithfully executed.

The 20th and 21st paragraphs give the lieutenant-governor, on the death,
resignation, removal from office, or impeachment of the governor, all the powers
of a governor.

By the 27th he [the Governor] is president of the council of appointment, and
has a casting vote and the commissioning of all officers.

The 40th paragraph orders that the militia at all times, both in peace and
war, shall be armed and disciplined, and kept in readiness; in what manner the
Quakers shall be excused; and that a magazine of warlike stores be forever kept
at the expense of the State, and by act of the legislature, established,
maintained, and continued in every county in the State.

Whoever considers the following powers vested in the [national] government,
and compares them with the above, must readily perceive they are either all
enervated or annihilated.

By the 1st art., 8th sec., 15th, 16th and 17th clauses, Congress will be
empowered to call forth the militia to execute the laws of the union, suppress
insurrections and repel invasions; to provide for organizing, arming and
disciplining the militia, for the governing such part of them as may be employed
in the service of the United States, and for the erection of forts, magazines,
etc.

And by the 2nd art., 2nd sec., "The president shall be commander-in-chief
of the army and navy of the United States, and of the militia of the
several States when called into actual service of the United States.…
except in cases of impeachment."

And by the 6th art., "The members of the several state legislatures, and
all the executive and judicial officers; both of the United States, and of the
several states, shall be bound by oath or affirmation to support the
constitution."

Can this oath be taken by those who have already taken one under the
constitution of this state? … From these powers lodged in Congress and the
powers vested in the states, it is clear that there must be a government within
a government; two legislative, executive, and judicial powers. The power of
raising an army in time of peace, and to command the militia, will give the
president ample means to enforce the supreme laws of the land.…

42

This paragraph provides "that it shalt be in the discretion of the
legislature to naturalize all such persons and in such manner as they shall
think proper."

The 1st art., 8th sec., 4th clause, give to the new government power to
establish a uniform rule of naturalization. And by the 4th art., 2nd sec.,
"the citizens of each state shall be entitled to all the privileges and
immunities of citizens in the several states," whereby the clause is
rendered entirely nugatory.

From this contrast it appears that the general government, when completely
organized, will absorb all those powers of the state which the framers of its
constitution had declared should be only exercised by the representatives of the
people of the state; that the burdens and expense of supporting a state
establishment will be perpetuated; but its operations to ensure or contribute to
any essential measures promotive of the happiness of the people may be totally
prostrated, the general government arrogating to itself the right of interfering
in the most minute objects of internal police, and the most trifling domestic
concerns of every state, by possessing a power of passing laws "to provide
for the general welfare of the United States," which may affect life,
liberty and property in every modification they may think expedient, unchecked
by cautionary reservations, and unrestrained by a declaration of any of those
rights which the wisdom and prudence of America in the year 1776 held ought to
be at all events protected from violation.

In a word, the new constitution will prove finally to dissolve all the power
of the several state legislatures, and destroy the rights and liberties of the
people; for the power of the first will be all in all, and of the latter a mere
shadow and form without substance, and if adopted we may (in imitation of the
Carthagenians) say, Delenda vit America.